Kevin Clancy discusses the possible implications of a recent Supreme Court judgment on prohibition notices.

On 8 February 2018, the Supreme Court gave its judgment in an appeal by Her Majesty’s Inspector of Health and Safety against Chevron North Sea Limited. The appeal concerned a legal argument around enforcement notices served under the Health and Safety at Work etc Act 1974 and, more importantly, what information can subsequently be considered by the Employment Tribunal when determining any appeal against an improvement or prohibition notice

The appeal was particularly appropriate for consideration by the Supreme Court given the diverging legal position that had emerged between Scotland on the one hand, and England and Wales on the other, and so is important in ensuring clarity across the two jurisdictions.

In short, the Supreme Court held that the Employment Tribunal, when determining an appeal against an improvement or prohibition notice (in terms of section 24 of the 1974 Act), is entitled to take into account evidence that was not known, nor indeed could reasonably have been known, to the HSE inspector at the time the notice was issued.

An appeal by a duty holder is therefore not an appeal against the reasonableness of the HSE inspector’s opinion but is against the notice itself.

What happened?

Chevron, as an operator of an offshore installation in the North Sea, was inspected by HSE inspectors in April 2013. An important part of Chevron’s installation is the helideck. Having examined the installation, the HSE inspector concluded that corrosion to the stairways and stagings (that provided access to the helideck) was such that it had been rendered unsafe and compromised safe evacuation. The consequence was that a prohibition notice required to be served. The notice was to take immediate effect.

As the Supreme Court observed, the service of a prohibition notice on a duty holder has the potential to do quite considerable harm, for example (i) in the disruption to business, (ii) the financial cost, (iii) the ability to tender, and (iv) reputational damage.

The only means by which a prohibition notice that has come into effect may be cancelled, and so prevent an entry being made on HSE’s public database (which some may view as being a ‘black mark’), is a successful appeal to the Employment Tribunal.

Chevron did indeed appeal in May 2013 and, at the hearing of the appeal, sought to rely upon an expert report finalised in March 2014 (after the appeal commenced, and a considerable time after the notice had been issued) that concluded the metal work of concern to the HSE inspector did, in fact, pass the British Standard strength test. Or, to put the point another way, there was no risk of individuals falling through the installation and no risk of a safe evacuation being compromised.

The inspector challenged Chevron’s ability to rely on that expert report before the tribunal. It was argued the tribunal should not have regard to ‘new’ evidence coming to light eleven months after the inspection, but should confine its decision making to evidence and information that was available to the inspector, or ought reasonably to have been available, at the time of the inspection.

The tribunal disagreed, considered the expert report, and cancelled the prohibition notice. The inspector appealed that decision to the Court of Session, but was again unsuccessful.

What about England and Wales?

The Court of Session in Scotland concluded that the tribunal was correct to have regard to the expert report (even though it could not have been available to the inspector), and that the tribunal was entitled to reach the decision it did on that evidence.

However, this did present a problem: the Court of Appeal in England and Wales had reached the contrary conclusion in 2015 (Hague v Rotary Yorkshire Ltd).

Instead, the Court of Appeal held that the tribunal on appeal should only be concerned to see whether the facts which were known or ought to have been known justified the inspector’s actions.

Why is this judgment important to duty holders?

The emphasis of the inspector’s appeal to the Supreme Court was that “it is vital for inspectors to be able to take prompt and effective action to ensure compliance with the provisions of the 1974 Act” and that “a prohibition notice is a powerful tool in the inspector’s hands”.

By determining that the correct approach is to consider all of the evidence that may assist in understanding what risk (as a matter of fact) existed, the Supreme Court was clear that this judgment does not undermine those propositions that inspectors require effective tools to ensure compliance.

Lady Black observed that this judgment does not mean HSE inspectors should be deterred from serving a notice for fear that if further information were to come to light then the inspector’s “concerns may turn out to be groundless”. Instead, the inspector “might just as well feel less inhibited about serving it, confident that if it turns out that there is in fact no material risk, the position can be corrected on appeal”. In light of those comments, might we see greater enforcement activity?

For the duty holder, the judgment may mean there is an increase to the number of improvement and prohibition notices being issued in the future (HSE inspectors feeling less inhibited). The means by which the duty holder can protect itself from financial and reputational damage is, of course, by lodging an appeal under section 24. In so doing, the effect of a notice will be suspended (for an improvement notice, the suspension comes into effect automatically; for a prohibition notice, the permission of the tribunal is required). But, an increase in the number of notices being issued may logically mean an increase in appeals being taken to the tribunal.

However, it is plain that a duty holder will need to act quickly. Notices will be required to be carefully considered, and potentially time consuming investigative work may be required in order to properly demonstrate at an appeal hearing that the inspector’s opinion at the time of the notice, however reasonable it may have been, cannot be supported on the new evidence. Timely expert and legal advice will be essential.